Citation Nr: 1300893
Decision Date: 01/09/13 Archive Date: 01/16/13
DOCKET NO. 07-14 944 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for a left hip disability, to include arthritis.
3. Entitlement to service connection for a right knee disability, to include arthritis.
4. Entitlement to service connection for a left knee disability, to include arthritis.
5. Entitlement to service connection for an obstructive sleep apnea (OSA).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Emily L. Tamlyn, Counsel
INTRODUCTION
The Veteran served in the National Guard while in service. He served on active duty for training (ACDUTRA) from January 2, 1975 to May 1, 1975 and served on active military duty from June 11, 2004 to November 20, 2005.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied the claims of service connection for bilateral hearing loss, tinnitus, a left hip condition, a left and right knee condition and a sleep apnea.
In March 2009, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing has been associated with the file.
In September 2009, the Board remanded this case for further development. In January 2011, the RO granted service connection for tinnitus. In June 2011, the Board again remanded these claims for further development. The Board finds there has been substantial compliance with the last remand. Stegall v. West, 11 Vet. App. 268, 271 (1998).
The claim for service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A left hip disability did not have its clinical onset in service and is not otherwise related to active duty; left hip arthritis was not exhibited within the first post service year.
2. A right knee disability did not have its clinical onset in service and is not otherwise related to active duty; right knee arthritis was not exhibited within the first post service year.
3. Resolving all doubt in the Veteran's favor, left knee arthritis is as likely as not related to active duty service.
4. A clear preponderance of the evidence is against a finding that OSA had its onset in or is otherwise related to active service.
CONCLUSIONS OF LAW
1. Left hip disability was not incurred or aggravated in service, and left hip arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).
2. A right knee disability was not incurred or aggravated in service, and right knee arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).
3. Left knee arthritis was incurred in active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).
4. OSA was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and to Assist
In a November 2005 letter, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012). The AOJ notified the Veteran of information and evidence necessary to substantiate his claim for service connection. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. Also, in May 2006, he was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2012). Here, the Veteran was given VA examinations for each of the claimed disabilities on appeal; the Board finds that these examination reports are fully adequate and explanatory.
In cases where VA is unable to obtain records, or if after continued efforts to obtain federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA is to provide the claimant oral or written notice of that fact. 38 C.F.R. § 3.159(e) (2012). Here, the Board finds that all VA and private treatment records have been associated with the file. All service treatment records are not in the file at this time.
As explained above, the Veteran served in the National Guard. The Board finds that all service treatment records from his active duty service (June 11, 2004 to November 20, 2005) are not in the file. Only partial service treatment records are in the file. Obtaining all of these records would be helpful because the Veteran is alleging disability due to this last period of active duty service. A March 2004 annual medical certificate is in the file, as well as a pre-deployment questionnaire from the same month. An October 2005 report of medical assessment (RMA) is also in the file. Other records (including September 2005 treatment records mentioned on the October 2005 RMA) are not in the file. There is no active duty enlistment or separation examination in the file.
The Veteran was informed in May 2006 that his service treatment records were requested from his unit and that it was ultimately his responsibility to see that VA receives this information. See 38 C.F.R. § 3.159(e)(1). An October 2006 formal finding of unavailability memorandum details the attempts made by the RO to obtain the records; including contacting and requesting records from the Records Management Center (RMC), the Veteran's unit, the Veteran, and the National Personnel Records Center. The Veteran was also advised of the attempts made to obtain his records in a letter from October 2006. In response, in November 2006, the Veteran submitted several lay statements and a statement from his Staff Sergeant dated August 2006 explaining that his recent deployment records were currently unavailable and "his records were misplaced through DOD, Army and TNARNG channels."
In January 2008, the October 2005 RMA was received at the RMC and forwarded to the VA, as shown by the date stamp on this record. The July 2008 supplemental statement of the case (SSOC) also notes the receipt of this record.
In September 2009, the Board remanded this claim for another search for records on the basis of the Staff Sergeant's statement that records would likely be found. In an October 2009 letter, the Veteran was again informed that he was ultimately responsible for seeing that VA received the records. In October 2009, VA received the Veteran's complete personnel file, but no further service treatment records. The January 2011 SSOC did not list receipt of any new service treatment records. In a letter received in February 2011, the Veteran stated he had no new evidence to submit. In the June 2011 Board remand, the Board directed the RO to clarify whether records had been received as the December 2009 VA audiology examination report appeared to cite to new records and a December 2009 letter to the Veteran was unclear as to whether new records had been received.
In June 2011, the Tennessee National Guard sent more personnel records for the Veteran, but confirmed that no service treatment records were available. In July 2011, the Tennessee Office of the Adjutant General stated that the Veteran's National Guard file was "permanently withdrawn by the individual or next living kin." An October 2011 letter was sent to the Veteran informing him of the response and requesting that he submit his service treatment records. The Veteran responded in November 2011 that he had no such records and was last told: "250 files had disappeared and most probably one of them was mine." He requested further assistance obtaining the records. In January 2012, another formal finding of unavailability memorandum was placed in the file and the August 2012 SSOC sent to the Veteran noted the last request for records was a negative response. In August 2012, the Veteran responded saying he had no additional evidence to submit.
The Board finds under the circumstances, further efforts to obtain the service treatment records at this time would be futile. Id. When a claimant's treatment records are lost or destroyed, the VA has a heightened duty to assist in the development of the claims. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board finds that such assistance was undertaken in this case. Additionally, regarding his claim for service connection for the left arthritis, the Veteran's allegations that he fell in a hole was considered by the December 2009 VA examiner. The October 2005 RMA notes his treatment for left hip and knee pain in September 2005 and the Veteran's statement that a clinician gave him a diagnosis of knee arthritis. As for his claim for service connection for OSA, the Veteran has been inconsistent on this issue and it does not appear he had treatment for it while on active duty. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).
In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge described the issues on appeal and suggested that any evidence tending to show that pertinent disability was related to service would be helpful in establishing the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. The duties to notify and to assist have been met.
Legal Criteria and Analysis
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).
Additionally, a presumption is afforded a veteran if he or she is shown to have engaged in combat with the enemy in active service. 38 U.S.C.A. § 1154(b) (2012). If combat is shown, VA shall grant service connection for any disease or injury alleged to have been incurred in or aggravated by service as long as there is satisfactory lay or other evidence of service incurrence or aggravation and the injury or disease is consistent with the circumstances, conditions, or hardships of service. Id. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. The Federal Circuit has held that, while § 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected, it does considerably lighten the burden on the veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service. Collette v. Brown, 82 F.3d 389, 392 (1996) (citations omitted).
In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1377. The Board must do more than look for a medical nexus in adjudicating claims with lay evidence; it must also discuss competence and credibility.
The United States Court of Appeals for Veterans Claims (Court), held that the Veteran was competent to testify to factual matters of which he had first-hand knowledge, including having right hip and thigh pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington, 19 Vet. App. at 368-69. The Court noted that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Id. See also 38 C.F.R. § 3.159(a)(2) (2012) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). In adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In determining whether lay evidence is satisfactory, the Board may consider the demeanor of the witness, internal consistency, bias, interest, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995).
For the claims for service connection for a left hip disability and bilateral knee disability, in addition to the above, service connection for arthritis may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). Degenerative arthritis is covered under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003. If established by X-ray findings, it is rated on the basis of limitation of motion under the appropriate diagnostic codes. When limitation of motion is noncompensable under the diagnostic codes, a rating of 10 percent is for application under each major joint or group of major joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. (See 38 C.F.R. § 4.71a, DC 5250-5253; 5256-5261 for range of motion standards.) With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups a 10 percent rating is assigned.
When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).
The Board finds that although the Veteran currently has a diagnosis of arthritis of the left hip and right knee, as well as OSA, these disabilities are not related to his last period of active duty service or any other period of service. Any right knee arthritis did not manifest to 10 percent within one year of service and there is no allegation that the claimed disabilities were incurred in combat. However, the Board will resolve doubt in favor of the Veteran and grant service connection for left knee arthritis on the basis of June 2007 X-ray findings.
The Veteran contended in his October 31, 2005 claim (submitted while he was still on active duty) that he was treated for his left hip and knees while serving in Iraq. In a November 2005 statement, the Veteran said that at the end of July 2005 he fell in a hole while carrying a box of parts for a vehicle. He went to the aid station to seek treatment for his left hip. He was given medication. He returned ten days later because of pain. Also around July 2005, the Veteran stated a doctor told him while he was seeking treatment for his hip that "arthritis had set up in both knees causing the pain."
In February 2011, the Veteran said that his medical records were lost and he sent buddy statements about his accident. He believed the statements showed he was hurt in Iraq. He asserted that the association between his accident and the arthritis, while perhaps poor, did not mean it was nonexistent. He cited 38 C.F.R. § 3.102. He also asserted that when he was in Iraq he met Army standards. When he hurt his hip, he started to have pain in the knees. He said he was told at an aid station that he hurt his hip and wearing body armor caused arthritis to "set up" in his knees.
The Veteran submitted about fifteen statements from fellow service members dated October or November 2006. These statements collectively support that the Veteran fell while he was in Iraq while carrying a box of supplies. He had to go to sick call due to pain in his hip which was present for the rest of the deployment. One statement asserts without elaborating that the Veteran had a "line of duty" done at the medical station; another says he was put on profile and bed rest. No further information was provided by the writers as to how they knew this information. Another fellow service member observed that since deployment the Veteran still has problems limping and/or favoring the left hip. The statement from the staff sergeant said he had "verbal confirmation" from the Veteran's peers and chain of command that the Veteran sought medical attention while deployed.
The Board finds that the Veteran is competent to state that he fell in service and that he has experienced pain since that time. Fellow service members are also competent to state what they actually observed of the Veteran in service, including that he fell and that he appeared to be in pain. See Washington, 19 Vet. App. at 368-69. The Board assigns such statements some probative weight. However, the Veteran and other lay observers are not competent to state that arthritis is related to a particular incident in service because medical expertise is required for such a judgment; they can state what they saw or experienced with their own senses. 38 C.F.R. § 3.159(a)(2).
Available service treatment records show the Veteran consistently denied bone, joint or other deformities; lameness; and a trick or locked knee prior to his last deployment. (See June 1989 and May 1996 reports of medical history.) In October 2001, the report of medical examination (RME) showed that the lower extremities were normal, but his weight and percentage of body fat were in need of administrative review.
A March 2005 annual medical certificate shows the Veteran denied medical problems (he had been treated for a nose issue recently and took high blood pressure medication). The initial reviewer noted he had no bone or joint problems and was fully fit; the physician reviewer noted he needed further audiology work up only. The October 2005 report of medical assessment shows the Veteran stated he was worse since his last medical examination. He denied having injuries that caused him to miss duty for longer than three days and denied being treated by a health care provider. He stated he had illnesses on deployment for which he did not seek medical care. He was concerned about his hip pain, which he was seen for in September 2005. Under the health care provider comments, it was noted that the Veteran was given medication and a profile as treatment. The pain was better. These comments also indicated: "r/o knee pain, seen Sept 05 - oral med Dx arthritis. Will f/u [with] PCP CIV at home."
The Board interprets the above statement to mean that the Veteran told the clinician of a prior diagnosis of arthritis while he was still in service. This statement is somewhat credible-although the Veteran did file his VA claim a day later. See Caluza, 7 Vet. App. at 511 (interest and bias, among other things, are considerations for the Board). There is no contradiction that he was told this by a clinician and it is plausible. It is assigned some weight. Of course, the Court has held the connection between what a physician said and a layperson's account of what was purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. See, Robinette v. Brown, 8 Vet. App. 69 (1995). However, as explained above, the holding in Jandreau is that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 492 F.3d at 1377.
A July 2006 FEDS HEAL (Federal Strategic Health Alliance) record shows the Veteran had a retention physical examination and was physically fit for retention; the only abnormality was hearing loss.
An October 2006 VA X-ray for the left hip was negative. The same month, a VA out-patient clinic record showed the Veteran complained of left hip and low back pain which he asserted started in service (he twisted his left leg carrying a heavy load). The pain was dull and worse after sitting for long periods and did not radiate. No myalgias or arthralgias were noted. He had normal range of motion of all extremities. The Veteran started medications for hip, back, and pelvis pain.
June 2007 X-rays from Dr. C. showed arthritis and spur formation for the left knee only. The X-ray showed no abnormality for the right knee. An X-ray for the left hip was similarly negative. A record from the same month showed Dr. C. reported all of the Veteran's subjective complaints and assessed him with everything he said he had. Decreased range of motion in the left hip and bilateral knees was noted.
A July 2007 letter shows the Veteran went to see Dr. C. and gave a history of a fall in service. "As a result of this injury, the patient now suffers from arthritis in hips and knees." The Veteran now had difficulty walking that appeared to be worsening with age. He was currently unable to bend his knees secondary to injury. July 2007 records from Dr. C also showed a questionable left leg mass shown by MRI; he was later referred to an orthopedic oncologist and it was found to be benign.
A November 2007 VA clinic record showed he reported bilateral hip pain, but there was no pathology. A May 2008 record showed similar findings and the assessment was hip pain; the Veteran was told to lose weight.
In December 2009, the Veteran attended a VA joint examination. This examination report noted that the Veteran stated he fell in a hole in 2005 and injured his hip. The claims file and medical records were reviewed. The Veteran was interviewed and examined. The diagnosis was arthritis of the hip. The examiner explained that the association between soft tissue injury and arthritis was poor, but the association between arthritis of weight bearing joints and obesity was strong. There was also an association between arthritis and advanced age. The examiner pointed out that the Veteran was of an advanced age and was obese; these conditions were the causes for arthritis, not his recent active duty service. The examiner gave the same opinion for the claim for service connection for bilateral knees. The examiner opined that bilateral knee arthritis was not caused by or the result of trauma in the military. Examiner stated that neither the Veteran nor the available service treatment records indicated that there was a traumatic injury regarding the Veteran's knees and, even if there was, the association between soft tissue injury and arthritis was poor. The examiner again related the Veteran's bilateral knee arthritis to obesity and the aging process.
Given the above evidence and that the Board assigns the Veteran's statement regarding a prior diagnosis of arthritis in service some weight, the Board will grant service connection for left knee arthritis under the reasonable doubt rule as the June 2007 X-ray did show a diagnosis of arthritis. See, 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, the same diagnostic test was negative for the right knee and the Board finds the claim for service connection for a right knee disability is not in equipoise as a result. The Board assigns the Veteran's statement to a clinician as it may pertain to the right knee less weight than the diagnostic test which was negative over a year after service.
Where conflicting medical opinions are given, there must be an assessment of the opinions. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-449 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009).
The Board finds that the December 2009 VA examiner's opinion is the most probative evidence in the file. The examiner reviewed the file, interviewed and examined the Veteran, and provided a reasoned opinion based on the information and medical science. Dr. C. did not provide support for the opinion given and did not address the Veteran's complete medical history. As a result, that opinion is assigned less weight. Nieves-Rodriguez, 22 Vet. App. at 304.
The Board also finds that service connection for left hip and right knee arthritis is not warranted on a presumptive basis because arthritis did not manifest to 10 percent within one year of service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The June 2007 X-rays support that there was no showing that arthritis was established by X-ray for the left hip or right knee. See 38 C.F.R. § 4.71a, DC 5003. Additionally, there was no showing that range of motion was impaired within one year of service. The right knee and left hip had full range of motion via the December 2009 VA examination report as well as at an October 2006 VA outpatient clinic appointment. Id.
Regarding the combat presumption, although his DD 215 shows service in a designated imminent danger pay area, the Veteran has not alleged that he suffers from orthopedic injuries incurred in combat. See 38 U.S.C.A. § 1154(b). The statements from his fellow service members also indicate he was not in combat when he fell. This presumption is not applicable.
The Board finds that service connection for a left hip and a right knee disability is not warranted based on all the evidence and relies on the opinion of the December 2009 VA examiner in coming to this conclusion for the reasons described above. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Board finds that the benefit of the doubt rule is not applicable as to these disabilities. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. It is applicable for the claim for service connection for the left knee. Id. The preponderance of the evidence is against granting service connection for a right knee disability and left hip disability and those claims are denied.
For the claim for service connection for OSA, the Veteran did not initially state on his October 2005 claim form that he was treated while in service or on deployment for this disability (as opposed to his other claims). In November, he stated that because of his duty in Iraq, he was constantly tired and sleepy most of the time. He stated he and his family find that if he is still for any period of time he goes to sleep. In February 2011, he asserted he was told he had sleep apnea when he got home from Iraq. He said he didn't know what sleep apnea was before it was diagnosed.
The Board finds that the Veteran is not competent to state that he snored in his sleep, but is competent to report other symptoms of OSA since service like being drowsy. 38 C.F.R. § 3.159(a)(2). Regarding when his symptoms started, the Board finds the Veteran has inconsistent. Initially he did not report an onset of symptoms; then he did in November 2005. But he did not report such concerns in October 2005 on the RMA. He did report his orthopedic concerns at that time. The Board finds the Veteran is not a reliable historian on when his symptoms started. Caluza v. Brown, 7 Vet. App. at 511.
A review of service treatment records shows that on an October 2001 report of medical history, the Veteran denied easy fatigability. On the March 2004 annual medical certificate, the Veteran checked that he had medical/dental problems since his last examination. He stated he had been seen by his health care provider and was on medication. He explained his positive responses by writing: "I had Polin Remove from nose (sic)". The initial reviewer stated: "Palp removed from nose six weeks ago - neg." The Board finds this likely meant "polyp." He had no other respiratory problems. On the October 2005 RMA, there was no mention of symptoms, diagnoses or findings of OSA.
In May 2006, the Veteran went to the VA outpatient clinic to establish care. He said he felt sleepy during the day and woke during the night. He fell asleep in his chair, dozed in traffic, and his wife says he snored. He was diagnosed with sleep apnea and a sleep study was recommended. In October 2006, the Veteran went to the VA outpatient clinic and said he was tolerating the OSA CPAP mask well. In an October 2007 appointment with Dr. C., the Veteran reported that his sleep apnea "started in Iraq over two years ago."
In December 2009, the Veteran attended a VA examination. The claims file and medical records were reviewed. The Veteran said he was told he might have sleep apnea when he was at Camp Shelby (while on active duty). He had a CPAP machine but did not use it. The examiner interviewed and examined the Veteran. It was noted he had a 19.5 inch neck. The examiner observed that the Veteran was obese with significant soft tissue of the neck.
The examiner noted the lack of service records from 2005 available for review; all available records were reviewed. The examiner concluded that the Veteran's OSA was not caused by or a result of military service. The examiner noted there was no assertion or records showing trauma to soft tissue of the neck or throat with a resulting scarring deformity. Instead, OSA was most likely related to the Veteran's obesity. For support, the examiner stated that the Veteran did not have a small airway or tonsilar enlargement at the time of the examination. The examiner cited to Up to Date to support; this reference noted that most patients have OSA because of a small upper airway or tonsil enlargement but obesity was another major factor.
The Board finds that service connection for OSA is not warranted. In coming to this conclusion, the Board relies on the opinion of the December 2009 VA examiner who reviewed the file, interviewed the Veteran, performed an examination and cited to current medical literature on the subject. The Board finds this opinion highly probative. The Board finds a lack of competent evidence of a nexus between OSA and active duty service. The preponderance of the evidence weighs against the claim. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
ORDER
Service connection for a left hip disability, to include arthritis, is denied.
Service connection for a right knee disability, to include arthritis, is denied.
Service connection for left knee arthritis is granted.
Service connection for an OSA is denied.
REMAND
The Board finds that the past two VA examinations are inadequate because they cite to evidence that is not in the file. The December 2009 VA examination report states that audiograms from 2004 and 2005 were available. The examiner noted that the last available audiogram for review from March 5, 2005, revealed no change in the Veteran's hearing thresholds as compared to the enlistment examination from 2004.
These audiograms are not of record. The June 2012 VA examination acknowledges that these audiograms were not of record, but relies on the past use of them in the December 2009 examination in coming to an opinion. The Board finds the service treatment records were apparently never associated with the file. Any opinion must reflect that fact.
Accordingly, the case is REMANDED for the following action:
1. Return the file to the June 2012 VA examiner or, if necessary send the file to a new VA examiner for an opinion. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the opinion. The examiner must indicate in the examination report that the claims file and the remand was reviewed.
The examiner should omit reference to the December 2009 VA examiner's statement regarding 2004 and 2005 audiograms (which are not in the file); an opinion should be given without regard to this information. The examiner should determine whether it is as likely as not (50 percent probability or greater) that hearing loss increased in severity in service beyond its natural progress.
All opinions should be fact-based and supported by rationale.
2. Re-adjudicate the claim on appeal. If it remains denied, provide the Veteran and his representative with a SSOC and allow an appropriate time for response.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs